The sociology of law is one of the oldest specialty fields in the discipline, reflecting the influence of nineteenth century jurists like Sir Henry Maine (1861) on writers of the founding generation like Tonnies, Weber, and Durkheim. Although it has been a less significant area over the last half century, it is currently undergoing a revival, mainly through its contribution to interdisciplinary studies in law and society alongside law, history, political science, anthropology, and social psychology.
- The Classics
- What Is Law and How Does It Work?
- Law and Social Action
- Law and Inequality
- Law and Social Change
Sociology’s canonical classical theorists, Karl Marx, Max Weber, and Émile Durkheim, confronted dramatic societal transformations. Studying law was a central task for Durkheim and Weber, as they sought to understand, explain, and predict the interrelated changes in technology, economy, polity, and culture constituting the rise of democratic capitalism (Sutton 2001; Stryker 2003). At the dawn of the twenty-first century, sociologists again confront profound and interrelated macrotechnological, institutional, and cultural transformations. These are reshaping everything from the nature of work, employment, and economic careers; to political institutions, policies, and culture; to religious and family life. Again, law is an important object of sociological inquiry. As did the classical theorists, contemporary sociological researchers of law provide windows into possible, alternative, or likely futures for national and global political economies and cultural life (Dezalay and Garth 1996, 2002; Stone 2004).
This chapter reviews sociological treatments of what law is and how it works, how law is produced and what law in turn produces, and how law relates to other aspects of social life. Understanding how law works requires not only considering legal rules or doctrine but also—and especially—legal actors or action and legal structures or institutions.
The first section provides entrée by discussing classical theories of law and social change that continue to shape the field. The second section addresses the question: What is law? Sociologists with different answers to this question likewise ask different questions and have different ideas about how law works in society. The third through fifth sections review legal sociologists’ key contributions to answering basic questions that motivate sociology as a scholarly field: (1) Who does what, how, and why? (2) Who gets what, how, and why? Studies of law’s legitimacy, of legal culture and consciousness, and of legal mobilization and obedience to law respond especially to the first question. Studies of how legal rules/schemas, resources, and institutions reinforce or undercut economic and social inequalities respond especially to the second. Studies of how legal norms shape and are reshaped by social norms and of the causes, mechanisms, and consequences of legal change respond to both.
Classical sociological perspectives on law are identified primarily with Karl Marx, Max Weber, and Émile Durkheim. Excellent in-depth reviews of their perspectives are available in Sutton (2001) and Trevino (1996), who also cover Sir Henry Maine’s evolutionary theories and Cesare Beccaria’s classical criminology. Remembered today primarily for proposing that modernization involved moving from legal rights and duties based on status deriving from family relations to legal rights and duties based on contract or bargains between individuals, Maine is an important precursor to Durkheim and Weber. With its intense criticism of the European penal institutions of the eighteenth century, Beccaria’s On Crime and Punishment prefigures Durkheim’s preoccupation with punishment theory and practice and links to contemporary treatises on penology (Foucault 1979; Garland 1990).
Durkheim’s  (1933) ideas on law, crime, and punishment are an important part of The Division of Labor in Society, his doctoral dissertation promoting sociology as a new professional field. In The Division of Labor, Durkheim provided an evolutionary theory of economic modernization that found its key indicators in the changing nature of law. A rudimentary division of labor was associated with mechanical solidarity, a type of moral bond based on similarity. A more advanced division of labor was associated with organic solidarity, a type of social bond based on difference. Durkheim classified law according to whether legal sanctions were penal/retributive, emphasizing punishment, or restitutive, emphasizing compensation for harm. These two kinds of sanctions became observable indicators for mechanical and organic solidarity. In lieu of Maine’s idea of transition from status to contract or Marx’s idea of class conflict as the motor force of economic transformation, Durkheim thought that the signpost of societal development was an increasing division of labor. This would be accompanied by a rising preponderance of organic solidarity. Thus, for Durkheim, the path of societal transformation was evidenced by an increasing preponderance of restitutive law over repressive law.
Durkheim’s sociological classification of law served as an indicator for presumed normative effects of the increasing division of labor. But these effects—organic solidarity— also had a function (or secondary feedbacks) that reinforced and promoted the division of labor itself, by increasing social regulation and social integration (Durkheim  1933). Similarly, Durkheim distinguished “negative” from “positive” restitutive law and assumed that the two types indicated different stages in the transition from mechanical to organic solidarity (Sutton 2001). Negative restitutive law protected actors from particular interferences or harms and was exemplified by property and tort law. Positive restitutive law facilitated economic and social ties or improved disputing actors’ circumstances and was exemplified by family law, administrative law, contract law, commercial law, and constitutional law.
Durkheim’s laudable goal of formulating empirically testable hypotheses is marred by difficulties in operationalization, most notably his unwarranted assumptions about equivalent rates of translation of uncodified repressive and restitutive customs into codified and thus measurable repressive and restitutive laws. Substantial empirical research since Durkheim’s time shows that his presumption of little restitutive law in societies lacking substantial division of labor is false. However, his argument that the division of labor in its normal as opposed to pathological forms produced solidarity rather than alienation and class oppression was an important attempt to refute Marx’s theory of economic and social development.
Marx, like Durkheim, viewed law predominantly as a dependent variable rather than as an independent variable in social change. Indeed, Marx’s historical-materialist philosophy of history relegated law to superstructure—an expression or reflection of changing economic modes of production. For Marx, changing modes of production— from, for example, the ancient slave societies of Greece and Rome, to feudalism, to capitalism, to socialism and communism—result from class conflict. Each mode of production entails its own characteristic means of production, for example, land in feudalism and capital in capitalism. Each production mode likewise entails its own characteristic class structure and conflicts between owners and nonowners of private property in its means of production, for example, between nobles and serfs in feudalism and between proletariat and bourgeoisie in capitalism. In the grand sweep of Marx’s historical materialism, law primarily references economic categories of property, class, and labor as it codifies preexisting production relations in economy and society.
In historical materialism’s general tenets, law is like the state, political, and cultural ideologies and religion in reflecting or following changing class relations of exploitation without being a force in producing them (Sutton 2001). This is an oversimplified, deeply flawed account. But Marx’s journalistic writings and his empirically oriented writings on capitalism reveal a more nuanced treatment. For example, his analysis of the nineteenth-century Factory Acts in England presents law as being an object and outcome of class struggle rather than simply reinforcing bourgeois domination. In Capital, Marx suggests that the Factory Acts, restricting the work day’s length, resulted from persistent working-class mobilization (Edelman and Stryker 2005).
Similarly, a young Marx wrote essays about law pertaining to theft of wood while the Rhine Assembly was debating a proposed law against gathering wood in Rhenish forests. Marx criticized the proposed law for what he assumed would be its effects—state legal mobilization in defense of expanding unequivocal private property interests of forest owners and against peasants’ customary “use-rights . . . [to] dead timber” from the forests that had accompanied the prior mixed regime of private and common-use property (Trevino 1996:100). For Marx, the proposed law was unjustly vague in failing to distinguish between gathering wood that had dried and fallen on its own—subject to the common-use custom—versus gathering wood the peasants felled themselves—arguably an assault against forest owners’ property rights. Illustrative of a talented scholar and activist’s multiple strands of thought, Marx the journalist fought the proposed law on theft of wood, hoping his critique could make a difference. Marx the historical materialist would have predicted precisely such legal shenanigans and contradictions as those outlined by Marx the journalist.
Of all classical sociologists, Weber provided the most foundation for more contemporary sociology of law (Swedberg 2002; Edelman and Stryker 2005). Weber wrote on state legitimacy stemming from a belief in legality based on state action adhering to formal-rational rules (Hyde 1983; Tyler 1990; Stryker 1994). His detailed historical, comparative research included studies of law and the rise of capitalism, in which he consistently emphasized law’s centrality for transforming and legitimating economic organization and activity (Ewing 1987; Stryker 2003).
According to Weber ( 1978), for political stability, raw power must be converted to legitimated authority. Tradition served as the dominant source of legitimating political order in premodern societies, and charisma could serve as a source of legitimacy for rulers in societies undergoing institutional transition. But where charismatic leaders derive authority from their unique personal characteristics and traditional leaders derive authority from behavior in accord with what was done in the past, the legitimacy of modern democratic-bureaucratic states rests on belief in legality. Democratic leaders take office pursuant to legal rules and derive their authority from being bound by legal rules. Bureaucratic officials derive authority from impartial application of formal rules in accord with expertise derived from educational training and credentials. Authority adheres to the office—and to officials as incumbents of offices—rather than to persons.
Weber’s systematization of his life’s work, in Economy & Society  (1978), emphasized interconnections among economic, political, legal, and religious action and institutions. According to Weber, rationalization of law was “a corollary to the rise of capitalism, the democratic-bureaucratic nation state and the advance of science and technology” and resulted from continuous power struggles, including those between state and church and among diverse status groups (Stryker 2003:338). In turn, legal rationalization promoted and reinforced rationalization of structure and action in other arenas of social life, including especially the economy.
Scholars continue to debate the meaning and adequacy of many aspects of Weber’s arguments for the conjoint rise of formal-legal rationality and of capitalism (see, e.g., Trubek 1972; Ewing 1987; Trevino 1996; Swedberg 2002). Still, some key features of the argument seem clear and unassailable. Trevino (1996) suggests important reasons that Weber presumed the rise of formal-legal rationality facilitated capitalist economic behavior and institutions.
First, stable rules providing legal rights and guarantees to parties to exchange operate to increase predictability and certainty in contracting. Guaranteeing that contracts will be enforced according to known rules increases the likelihood that promises will be kept. All this encourages people to make contracts and to engage in other types of business activity on which market exchange depends. This increases the probability of developing market exchange, which, in turn, provides more opportunities for contract and business law to grow, diffuse, and adapt to new economic circumstances. Weber understood that markets and economic exchange could exist without legal enforcement of contracts. But without such enforcement, emergence of a full-blown capitalist economic system would be unlikely.
Second, formal legal rationalization promoted rational capitalism by making available new tools, especially the legal ideas of agency, negotiability, and the legal person. For Weber, all three of these ideas probably were necessary conditions for the development of economic action and institutions with a high degree of calculability, predictability, and systematization (Stryker 2003). Without the idea of agency—allowing one person (the agent) to represent another (the principal) with that other’s consent—and without negotiable instruments—legal documents such as checks, bank notes, and bills of exchange that represent in writing an unconditional promise to pay—commercial transactions would be much harder and more risky, though not impossible.
In addition, the idea of the juristic or legal person makes expectation, liability, and responsibility, instead of magic, prophecy, or privilege, the core focus of contracts (Trevino 1996). This facilitates and regulates exchange relations, as does knowing where each officer and member of a business organization stands with relation to each other and to other firms. Such knowledge would be impossible without the idea of the business organization as a legal person—a legitimate economic actor and party to a contract with legal standing to ensure that the contract be enforced.
Third, the idea of legal personhood makes business organizations bearers of universal rights and duties entitled to formal equal treatment under law. The idea of the juristic person connects “rule of law” and “belief in legality in the polity [to] the construction and reproduction of capitalist ideologies, actors and institutions” (Stryker 2003:339).
In sum, Weber believed sensibly that legal tools such as agency, negotiable instruments, and the legal person were necessary preconditions but not in themselves sufficient for “a full blown formal and purposive rationalization of economic life” (Stryker 2003:239). Full-blown capitalism emerged from the confluence of many factors, including prior economic and legal preconditions and diverse political and religious factors. Where legal innovation functioned as a necessary condition for institutionalization, diffusion, and growth of capitalist forms of economic organization, Weber also suggested that the “ethic” of Protestantism was a sufficient albeit not a necessary condition for the rise of a capitalist “ethos” (Stryker 2003).
Notwithstanding empirical errors in Weber’s work, including in his treatment of non-Western law, Weber’s scholarship provides a starting point for much contemporary sociological inquiry into law, social order, and social change. This is appropriate because Weber demonstrates convincingly that law helps constitute and mobilize economic, political, and cultural actors, norms, values, interests, and power. Law also is a source of political-economic and cultural meaning. Revisiting Weber naturally leads to discussing contemporary ideas and findings from the sociology of law.
What Is Law and How Does It Work?
There may seem to be almost as many concepts of law as there are sociolegal scholars. But the concepts fall under a small number of broad categories that include law as social control, law as rule or institutionalized doctrine, law as resource, and law as legality. Whereas some concepts emphasize “law on the books,” others highlight “law in action.” Whereas some are especially conducive to thinking about legal actors, action, and interaction, others are especially useful for thinking about legal institutions or fields. All concepts embody ideas about how human agency relates to social structure, capturing sociology of law’s dual focus on social action and social organization and institutions.
Inspired by Durkheim, scholars studying crime, law, and punishment tend to define law by its societal function as an institutionalized system of social control (e.g., Davis 1962; Spitzer 1975; Black 1976). For example, Davis (1962) stated that “law is defined as a formal means of social control that involves the use of rules that are interpreted, and are enforceable by the courts of a political community” (quoted in McIntyre 1994:10). Black (1976) defined law as “governmental social control . . . in other words, [law is] the normative life of a state and its citizens, such as legislation, litigation and adjudication” (p. 2).
The social control concept of law invites research on punishment theory and practice and on how law relates to social custom, morality, and power (e.g., Foucault 1979; Lanza-Kaduce et al. 1979; Garland 1990; Savelsberg 1992, 2002). Similarly, this concept promotes investigating how criminal and civil sanctions operate as external constraint or as behavioral standards that people internalize through socialization. It also spurs research on how formal and informal control mechanisms interrelate and on how legal actors and organizations such as police, prisons, courts, and regulatory agencies operate (e.g., Black 1989; Grasmick and Bursick 1990; Tyler 1990; Yeager 1990; Ayres and Braithwaite 1992).
Introductory sociology texts introduce the idea of law as a particular type of norm when discussing the broader concept of norms as patterned rules or expectations for behavior (Farley 1998:67). Thus, law as social control brings front and center questions about the relationship between legal and social norms while also distinguishing between law proper—rules enacted and enforced by formal state institutions—and other social norms or rules for behavior. Such other norms include customs and also formal rules enacted by nonstate institutions, including the due process grievance procedures that American firms adopted in response to post–World War II legislation and judicial rulings governing the workplace and social welfare provision (Bohannan 1965; Lempert and Sanders 1986; Sutton et al. 1994; Dobbin and Sutton 1998).
Because norms are rules, accounts of law as social control resemble doctrinal legal scholars’ conceptualization of law as rules. But where traditional legal scholars typically think about rules expressed in written, institutionalized doctrine—“black-letter law,” legal codes, and court opinions—sociologists of law typically are less interested in such law “on the books” than in what law and society scholars call “law in action” (see Cotterrell 1995; Friedman 1995; Trevino 1996). Law-in-action research examines how law is socially produced and what are its social consequences. Calls to study law in action accompanied the mid-1960s founding of the Law & Society Association and produced rich, variegated insights and findings. A key contribution has been to highlight gaps between what law on the books says—or appears to say— and how legal actors and institutions, including prosecutors, courts, prisons, and regulatory agencies, operate in practice (Lempert and Sanders 1986; Black 1989; Friedman 1995; Stryker 2003).
Some sociologists of law question the utility of the concept of law as rules, promoting instead a concept of law as legality. In their influential The Common Place of Law, Patricia Ewick and Susan Silbey (1998) invoke legality to
refer to the meanings, sources of authority and cultural practices that are commonly recognized as legal regardless of who employs them or for what ends. In this rendering, people may invoke and enact legality in ways neither approved nor acknowledged by the [formal] law . . . Rather than something outside of everyday social relations, legality is a feature of social interaction that exists in those moments when people invoke legal concepts and terminology associating law with other social phenomena. (Pp. 22, 32)
The idea of law as legality grew out of—and has further promoted—much current research on legal consciousness, exploring how law is experienced, understood, and enacted by people in their interactions with formal-legal authorities and in their everyday lives (Sarat 1990; Ewick and Silbey 1998, 2003; Boyle 2002; Hoffman 2003; Hull 2003; Marshall 2003; Saguy 2003; Nielson 2004). Law as legality also is associated with substantial research on legal mobilization as a strategy for promoting change in law and the state, as well as in broader economic, social, and cultural concepts and practices (Fuller, Edelman, and Matusik 2000; Kostiner 2003; Stryker 2003; Edelman and Stryker 2005). To the extent that scholars of legality consider that they supplement rather than replace prior sociological focus on formal-legal actors’ organization and behavior, including interpretation and application of formal legal rules, law as legality begins to merge with a rule-resource concept of law (Stryker 2003; Edelman and Stryker 2005). Both rule-resource and law as legality concepts anticipate that formal-legal institutions and action will be constructed and their consequences for society played out through political and cultural processes. As well, they both point toward investigating how symbols, ideologies, and enactments of legality spill over and change across boundaries of formal-legal institutions and other fields of social life (Stryker 2003; Edelman and Stryker 2005).
Stryker (2003) proposed merging the idea of law as rule with the idea of law as resource to provide a concept of law that, like the idea of law as legality, emphasizes the agency-structure duality of all social life. The rule-resource concept is broadly institutionalist and thus a good fit with the growing popularity of institutional perspectives among sociologists more generally (see Edelman and Suchman 1997; Steinberg 2003; Pedriana and Stryker 2004). Stryker (2003) suggests that the rule-resource concept especially helps show how law shapes and is shaped by inequality and how legal and social change are interrelated (see also Stryker 1994; Dezalay and Garth 1996, 2002; Fligstein and Stone Sweet 2002; Edelman and Stryker 2005).
The rule-resource concept suggests that law contains rules, operating as resources for actors in and outside legal institutions. Key terms—rules and resources—are defined broadly so that rules encompass any “generalized procedures applied to the enactment/reproduction of social life” (Giddens 1984:2). Both doctrinal rules emphasized by lawyers and the orienting schema emphasized by scholars of legality receive empirical attention. Similarly, sociologists of law must attend both to state law and to the nonstate but law-like formalized procedures that increasingly pervade the workplace. As do ideas of law as legality, the rule-resource concept points to examining boundaries between formal law and other institutional spheres, including the economy, polity, school, and family.
Both human attributes and nonhuman objects and tangible and intangible objects are positive resources toward meeting actors’ goals or interests to the extent that they can be used to attain, enhance, or maintain those goals. When actors use law strategically to get what they want— whether money, power, social status, or self-esteem—legal rules operate as cultural resources that are mobilized instrumentally. When legal rules provide interpretive scripts to help actors define and understand and/or evaluate themselves, others, and their situations, they are resources operating—often unselfconsciously—in constitutive or normative fashion. Thus, law shapes social action and institutions through cognitive or constitutive, normative, and instrumental social mechanisms (Stryker 2003; Edelman and Stryker 2005). Because all institutions, and not just formal-legal ones, embody both rules for behavior and resource arrays, the rule-resource concept also invites inquiry into how legal resource arrays shape and are shaped by resources provided in other institutional fields, including the economy and polity. Studies of law and inequality focus on this question and the prior one of for whom, and how, legal rules provide resources.
Law and Social Action
One major category of research on law and social action focuses on why most people in most places most of the time obey the law and what causes variation in law violation (see, e.g., Grasmick and Bursick 1990; Tyler 1990). Studies of law’s legitimacy are part of this first category, while bridging to a second category of focus on legal culture, consciousness, and mobilization. A third category focuses on how and why laws are enacted and how cognitive, normative, and instrumental mechanisms come together to produce the political and institutional processes through which laws on the books are interpreted and enforced in action (Stryker 2000b, 2003; Edelman and Stryker 2005).
One explanation for obedience to law emphasizes deterrence, while another highlights legitimacy. Though often treated as competing, the two perspectives may well provide complementary accounts, each of which provides insight but neither of which is sufficient. Deterrence theory posits that crime and refraining from crime are products of rational choice.
Given the opportunity to commit a criminal act, the person presumably weighs the costs and rewards of doing so in comparison to other behavioral options. The more the person presumes that “legal sanctions [will be] certain, swift and/or severe, the greater is the perceived cost of crime and thus the possibility of deterrence.” (Williams and Hawkins 1986:547)
With expected costs held constant, as the expected rewards from crime go up, the deterrent effect of legal sanctions should diminish. Opportunity is a scope condition for this model; if there is no opportunity for criminal behavior, we cannot test whether or not deterrence works. When a person has the opportunity to commit a crime but refrains from doing so because he or she fears sanctions, including fine, imprisonment, or execution, deterrence is operating.
Deterrence scholarship distinguishes between general and specific deterrence (Williams and Hawkins 1986). General deterrence occurs when people refrain from crime due to perceived threat or fear of sanctions. Specific deterrence pertains to the subset of persons who have experienced legal sanctions. If such persons avoid further crime because they fear they will be punished, this constitutes specific deterrence (Williams and Hawkins 1986).
Early empirical research on deterrence varied the likelihood and severity of punishment (for reviews, see Zimring and Hawkins 1973; Blumstein, Cohen, and Nagin 1978; Gibbs 1986). Implicitly or explicitly, researchers presumed that variation in respondents’ perceptions of the likelihood, swiftness, or severity of sanctions tracked variation in whether and how sanctions were applied (Grasmick and Bursick 1990). Consistent with Williams and Hawkins’s (1986) admonition to theorize “the perceptual processes implied by the [rational choice deterrence] model” and directly measure the impact of “perceptual variables” (pp. 548, 549) more recent research has examined the impact of variation in perceptions of the likelihood and severity of sanctions.
Where cross-sectional perceptual studies consistently found that perceived certainty had a negative impact on self-reported criminal behavior, only one study found a significant negative effect of perceived severity on self-reported crime (Jensen, Erickson, and Gibbs 1978; Paternoster et al. 1982; Williams and Hawkins 1986). Most cross-sectional studies suffer from a “temporal order problem.”
Since perceptions [were] measured after law violations [had] taken place, . . . the analysis . . . may indicate that individuals who were actively involved in crime in the past have lower perceptions of certainty and severity in the present precisely because they have escaped being caught and punished for their crimes. (Williams and Hawkins 1986:551)
Correcting the temporal order problem, panel research examined whether or not perceptions of certainty and severity remained stable over time and whether or not such perceptions at Time 1 had independent effects on self-reported crime at Time 2. Panel studies showed that perceptions of legal sanctions were unstable over time and their impact was smaller than that previously suggested by cross-sectional studies (Saltzman et al. 1982; Paternoster et al. 1983). But many of these studies were conducted on samples of juveniles, whose experiences and perceptions were not yet fully formed, leaving open the possibility that stability of perception may be greater among adults. Later panel studies on adults showed adult risk perception too may be unstable over time, and researchers have not agreed on the appropriate lag time for measuring perceptions relative to criminal behavior (Piliavin et al. 1986; Williams and Hawkins 1986).
One well-thought-out study asked a random sample of adults in face-to-face interviews about their intentions to cheat on their taxes, engage in petty theft, and drive drunk (Grasmick and Bursick 1990). Perceived certainty of legal sanctions was measured by items tapping the respondent’s perception that she would be caught if she engaged in the behavior. Similarly, severity of legal sanctions was measured along a scale tapping the respondent’s assessment of how big a problem would be created if she were caught and the courts had decided on the punishment. Using logistic regression to predict whether the respondent intended to commit the crime in the future, given her perceptions of certainty and severity today, controlling for gender, age, education, prior offending, and also controlling for the perceived potential for “extralegal” sanctions of shame and embarrassment, perceived threat of legal sanctions had substantial, statistically significant negative effects on intent to commit all three offenses (Grasmick and Bursick 1990).
Much research has examined whether or not execution deters homicide more so than does long-term incarceration. After an influential econometric analysis suggested that the death penalty had substantial deterrent effects, that study received searching criticism as part of a broader inquiry into the impact of legal sanctions on crime rates published by the National Academy of Sciences (Erlich 1975; Klein, Forst, and Filatov 1978). In their recent literature review, Radelet and Borg (2000) reported that “the vast majority of deterrence studies have failed to support the hypothesis that the death penalty is a more effective deterrent to criminal homicides than long term imprisonment” (p. 45). For a time, general deterrence was the most-invoked rationale for the death penalty, but this argument waned as both criminologists and law enforcers became convinced by the research that if the death penalty were to be supported, it must be for reasons other than deterrence (Radelet and Borg 2000).
Piliavin et al.’s (1986) longitudinal study is one of the few measuring the reward as well as the cost side of deterrence logic. The authors specified, estimated, and tested a structural equation model of deterrence on data collected from three populations of respondents at high risk for formal sanctions. They found that self-reported crime rose as the perceived reward expected from committing the crime increased. However, Piliavin et al. failed to find deterrent effects of varying perceived costs. Neither perceived risk of legal nor extralegal sanctions was associated with rates of self-reported crime.
A major controversy concerns how extralegal sanctions are related to formal-legal sanctions and whether or not the former produce deterrence. Much research on the impact of extralegal sanctions presumed a Durkheimian mechanism of internalized social control or a Meadian self and identity mechanism responsive to the attitudes and behaviors of significant others (Williams and Hawkins 1986). Grasmick and Bursick (1990) reconceptualized internalized norms as conscience and argued that offending against one’s conscience creates the cost of shame. Similarly, they recast significant others’ attitudes in terms of costs—embarrassment—that likewise should decrease the utility of crime. They found that expecting shame had a greater effect on intent to cheat on taxes than did expecting legal sanctions. The impact of shame on intent to drive drunk or engage in petty theft was similar to that of legal punishment, while expecting embarrassment did not significantly affect intent to engage in any of the three behaviors.
Williams and Hawkins (1986) point out that to the extent formal-legal crime control occurs, deterrence is only one of the possible mechanisms. Incapacitation and habituation are two mechanisms independent of both perception and deterrence through which law can have its effects. Perceptual mechanisms outside of deterrence include “enculturation (conform[ity] out of respect for authority), moral condemnation (self-defined dislike of an act) [and] normative validation (seeing others punished reinforces the view that an act is wrong)” (p. 562). Perceptual factors that are part of deterrence include stigma from arrest, attachment costs, and commitment costs. The first and third—loss of self- and social esteem and respect and loss of friends, respectively—tap processes similar to what Grasmick and Bursick (1990) conceive of as shame and embarrassment. The second—the cost of arrest for realizing future goals—is similar to how Grasmick and Bursick (1990) operationalize and examine the direct impact of formal law enforcement.
Adding a final layer of complexity to scholarship on obedience is the idea of law’s legitimacy and how this may work independent of or in tandem with deterrence. Theories about the role of legitimacy stem from Weber’s seminal treatment discussed earlier. Though the concept of legitimacy has detractors (Hyde 1983), it
has been considered essential for understanding how legal and social order are maintained. Current approaches contain three themes: legitimacy as cognitive orientation to binding [legal] rules . . . legitimacy as attitudinal approval of those rules; and legitimacy as behavioral consent to those rules. (Stryker 2001a:870)
The behavioral consent tradition typically emphasizes instrumental, interest-based sources of legitimacy beyond the specific cost-benefit analyses of sanctions considered by deterrence researchers (for a review, see Stryker 1994). However, most sociologists of law emphasize cognitive or normative definitions and sources of legitimacy. They suggest that legitimacy is of great social import to the extent that it motivates individuals to obey law even when law’s application works against their self-interest (Hyde 1983; Tyler 1990; Stryker 1994). Tyler and his colleagues have conducted the most sustained, influential line of research on the sources and consequences of law’s legitimacy for obedience (Tyler, Casper, and Fisher 1989; Tyler 1990, 1994; Lind, Kulick, and Ambrose 1993).
Suggesting that legitimacy has a normative basis, Tyler (1990) argues that its best definition is perceived internalized obligation to obey the law. A secondary definition is attitudinal support of legal authorities or institutions. Deterrence requires enforcement of legal controls and thus is costly to states, but legitimacy produces voluntary compliance. Legitimacy is distinct from personal morality. The latter involves following one’s personal sense of right or wrong, independent of formal law, and is akin to Williams and Hawkins’s (1986) idea of moral condemnation (Tyler 1990).
Using a representative sample of Chicago adults and focusing on six behaviors including parking violations, littering, petty theft, making noise and disturbing neighbors, speeding on the highway, and drunk driving, Tyler (1990) conducted both cross-sectional and panel analyses. When the dependent variable was legal compliance during the period between Times 1 and 2 of the survey, legitimacy measured at Time 1 (by a scale constructed based on items reflecting internalized obligation to obey) significantly and substantially increased compliance at Time 2, controlling for demographics and diverse attitudinal factors. Among attitudinal controls were variables tapping perceived likelihood of getting caught, that is, deterrence. When assessed independently in a multiple regression including other legitimacy measures, support for police had a weak but statistically significant effect on compliance. Support for courts was statistically insignificant.
In contrast to strong effects found for legitimacy, Tyler’s (1990) analyses provided only weak evidence for deterrence. When he examined a possible interaction effect between legitimacy and deterrence, Tyler found that his respondents were “almost equally likely to comply with the law because they view it as legitimate whether they think the likelihood of their being caught is high or low” (p. 63).
Because legitimacy’s import proved substantial, Tyler (1990) investigated empirically the sources of variation in law’s legitimacy among Chicagoans. Stryker (2001a) summarizes her results as follows:
Tyler (1990) found that a “process perspective” on procedural justice was a more powerful predictor of law’s legitimacy than was an “outcome perspective.” The outcome perspective presumes that people assess the fairness of procedures based on the degree to which they feel they can control the content of the decision. The process perspective presumes that people focus on more formal criteria like neutrality, impartiality or lack of bias. To some extent, Tyler’s (1990) findings echo Weber’s assumptions about how rational legal authority is legitimated, since in Tyler’s data, people who perceived they had been treated neutrally, impartially, honestly, politely and with respect exhibited enhanced support for police and courts, but the effect of process control was greater than that of decision control. An important caveat is that neither perceived process control nor outcome control was directly related to the measure of legitimacy with the most impact on compliance to law: perceived obligation to obey. (P. 8702)
Exploring outcomes ranging from individuals’ attitudinal support for judges and courts to corporations’ behavioral acceptance of nonbinding arbitration decisions in federal contract and tort disputes, sociologists of law continue to examine how variation in law’s legitimacy relates to variation in perceived procedural justice and to variation in subjective and objective desirability of outcomes achieved (Tyler et al. 1989; Lind et al. 1993). Finally, in a separate line of work grounded in experimental results showing that, over time, collective recognition of a binding rule produces the internalization of that rule by many members of the collective, Stryker (1989, 1994, 2000b) examined the relationship between the legal system’s incorporation of scientific modes of reasoning and evidence and law’s legitimacy. Whereas Weber failed to distinguish clearly between formal-legal and scientific rationalization, later scholars did so. This made it possible for Stryker (1994, 2000b) to theorize the cognitive, normative, and instrumental mechanisms linking legitimacy of litigation processes and results to the expanding role for cause-effect reasoning, scientific experts, and evidence within litigation. Because Stryker (1994, 2000b) focuses especially on how compliance and failure to comply are part of a broader set of processes producing both legal stability and legal change through legal and political mobilization and conflict, her work segues between the topic of obedience to law and the second major category of research on law and social action, that of legal consciousness and mobilization.
Lawrence Friedman (1989) distinguished between legal culture and popular legal culture. The former refers to ideas, ideals, beliefs, values, norms, attitudes, and behavioral predispositions about and toward law held and practiced by those working within formal-legal institutions. For example, the concept of precedent is an important part of American legal culture and of all common- or case-law-oriented legal culture. Without understanding what precedent is and how it works, no lawyer can practice nor can any judge adjudicate disputes by interpreting and applying prior adjudicative law (Shapiro and Stone Sweet 2002). Popular legal culture refers to ideas, ideals, beliefs, values, norms, and behavioral predispositions about and toward law held and practiced by laypeople. The study of popular legal culture, now relabeled legal consciousness, is a current growth enterprise among sociologists of law, who, like their counterparts in other sociological subfields, experienced a cultural turn. Legal consciousness is intimately related to legal mobilization, since “how people envision law affects whether and how people mobilize legal tools at their disposal” (Edelman and Stryker 2005:530, citing Fuller et al. 2000).
Substantial scholarship exists investigating the extent, patterns, and outcomes of mobilization of specific types of law, including labor, employment, and civil rights law (Bumiller 1987; Burstein 1991; Forbath 1991; McCammon and Kane 1997; McCammon 2001). For example, McCammon (2001) analyzed time series data for the period 1948–1978 and found that the filing of unfair labor practice charges by workers increased as union representation elections increased. Examining the post–World War II period, McCammon and Kane (1997) found that the likelihood of court rulings for workers increased as the number of unfair labor charges filed against employers increased. However, this effect became smaller when employer associations also were mobilized.
With respect to legal consciousness more generally, Merry (1985, 1986) observed persons using lower civil and criminal courts to deal with everyday business, family and neighborhood and romantic problems. She found that working-class Americans understood legal rights to be about “control [of] . . . one’s property . . . and rights not to be insulted, harassed or hit by neighbors or family members without sufficient reason” (Merry 1985:67). As they gained experience with the courts,
The meaning of rights shift[ed] . . . Rights bec[a]me resources, not guarantees. They bec[a]me opportunities for action . . . the ideology of formal justice exercises some control . . . but it is not passively received. Definitions of legal rights in social relationships are constructed by litigants and court officials as they deal with day to day problems in court. (Merry 1986:266)
Sarat (1990) investigated the “legal consciousness of the welfare poor” (p. 343) through participant observation at local welfare offices. He concluded that “the welfare poor understand that law and legal services are deeply implicated in the welfare system and are highly politicized. As a result, they are both uncertain and afraid when they seek legal assistance” (p. 374). Nonetheless, they also hope. While some try to mobilize the technical legal rules of the welfare bureaucracy to fight the bureaucracy, others “try to use law and lawyers to get the welfare bureaucracy to live up to its own raison d’etre” (p. 374). Still others mobilize needs-oriented discourses, appealing to shared humanity of welfare recipients and professionals.
A common theme of research by Sarat (1990), Merry (1985, 1986), and others (e.g., Yngvesson 1988; Conley and O’Barr 1990) is that lay legal understandings are plural, representing both opportunity and constraint. There is built-in pessimism in foundational work on legal consciousness, because plural discourses mobilized by welfare recipients “reaffirm law’s dominance even as they are used to challenge the decisions of particular legal officials” (Sarat 1990:374). Law’s dominance itself is a key part of sustaining elite power and of the ideological and institutional maintenance of an inegalitarian democratic capitalism (Stryker 2003; Edelman and Stryker 2005). Ewick and Silbey’s (1998) book culminated much work on legal consciousness, paving the way for early-twenty-first-century studies on street harassment, sexual harassment, and gay marriage (Hull 2003; Marshall 2003; Saguy 2003; Nielson 2004).
Based on in-depth, face-to-face interviews with more than 100 persons in four New Jersey counties, Ewick and Silbey (1998) suggest that three types of everyday legal consciousness interact to produce law as legality, blurring boundaries between strictly legal and broader social ideas and institutions. Labeling these “before the law,” “with the law,” and “against the law,” the authors show how all three can be identified along four dimensions: normativity, constraint, capacity, and time and space. Respondents exhibiting “before the law” consciousness viewed law as a
formally ordered, rational, hierarchical system of known rules and procedures . . . relatively fixed and impervious to individual action . . . a realm removed from ordinary affairs by its objectivity [and to which] they turn . . . only when they can imagine their personal problems as having general import . . . Law is understood to be a serious and hallowed space. (Ewick and Silbey 1998:47)
This is similar to law’s own partially mythical, partially apt depiction of itself. Even when frustrated at their powerlessness, people exhibiting before the law consciousness defer to legal system claims of autonomy and legitimacy based on formally neutral procedures.
People expressing “with the law” consciousness emphasize law’s value as a strategic resource to meet individual rather than collective goals:
Law is described and “played” as a game, a bounded arena in which pre-existing rules can be deployed and new rules invented to serve the widest possible range of interests and values. It is an arena of competitive tactical maneuvering where the pursuit of self-interest is expected and the skillful and resourceful can make strategic gains. (Ewick and Silbey 1998:48)
When exhibiting “against the law” legal consciousness, people show their
sense of being caught within the law or being up against the law, its schemas and resources overriding their own capacity either to maintain its distance from their everyday lives or to play by its rules . . . [They] described their attempts at “making do” using what the situation momentarily and unpredictably makes available—materially and discursively— . . . to forge moments of respite from the power of law. (Ewick and Silbey 1998:48)
Here, there is acute appreciation of the power and costs of law and there is momentary, individual-level resistance to evade those costs. Resistance is recounted with pride and a sense of justice. But it is not the sort of resistance that ordinarily leads to collective action to use the law to change the law.
On the one hand, Ewick and Silbey (1998) argue that both the plurality of legal consciousness and the contradictions among the types of consciousness reinforce the overall structure and potency of legality. Recognized violations of “before the law” consciousness may be explained by invoking a “with the law” consciousness, and people readily switch between the two to negotiate everyday life. That the very same people exhibit multiple, contradictory forms of legal consciousness is an important finding. The authors suggest this as a key reason for the durability and power of legal institutions (Ewick and Silbey 1998:230–33).
On the other hand, and in spite of their previous argument, the authors also suggest that sharing stories of resistance with others may bridge between personal resistance and collective action. They argue that “the recognition of these contradictions (i.e., that law is both a transcendent realm of rule bound authority and yet available to resourceful skilled players) is . . . at the heart of resistance” (Ewick and Silbey 1998:233). Avoiding the inconsistent empirical predictions implied by the authors requires future theory and research to address conditions under which contradictions among types of legal consciousness reinforce the structures of legality, conditions under which contradictions promote individual resistance, and conditions under which individual resistance becomes collective resistance. Ewick and Silbey (2003) have begun tackling these issues. However, more must be done to integrate studies of legal consciousness with those of collective action and legal and social change.
A final set of studies on law and social action focus on the politics of legislation and law enforcement (Stryker 2000a). Because politics in the broad sense involves individuals, groups, and organizations mobilizing tangible and intangible resources to influence authoritative decision making in accord with their understandings, interests, and values and also includes how attempts to influence authoritative decision makers are shaped by “rules of the game,” it includes both institutional and cultural processes (Stryker 2003). It likewise includes both overt resource mobilization, countermobilization, and power and the covert power that creates nonissues and tends to limit overt power struggles to those taking place well within unchallenged foundational assumptions of democratic capitalism (Stryker 2003; cf. Edelman and Stryker 2005).
Stryker (2000a, 2003) and Edelman and Stryker (2005) review literature on the politics of diverse regulatory and social welfare legislation, interpretation, and enforcement. They may be consulted for more references and details about perspectives used to explain and predict the origins and enforcement of legislative law. Some explanatory perspectives emphasize the costs and benefits of diverse types of legislation to competing economic interests and also the resources available for mobilization by such interest groups. Other perspectives emphasize the political institutions that shape policymakers’ and politicians’ interests and through which both they and societal groups and organizations must work (cf. Stigler 1971; Wilson, 1980 with Moe 1987; Vogel 1996).
Traditionally, economic and political science variants on these approaches were appropriate for modeling comparative statics but not for understanding dynamics. Meanwhile, the class and historical-institutional perspectives devised by sociologists are less oriented to formal modeling but more focused on understanding and explaining dynamics of law and policy evolution (Stryker 2000a). An increasing amount of empirical research suggests that although theoretical accounts emphasizing politicians’ interests and political institutions ordinarily are treated as competing, both perspectives offer partial insight and must somehow be integrated to understand the origins and evolution of legislative law (Stryker 2000a). Politics internal to the enforcement agency combine with conditions in the agency’s external environment to shape regulatory legislation and enforcement (Stryker 1989). Technical experts play an important role in regulatory dynamics. Economic analysis is relied on heavily to promote deregulation and procompetitive regulatory reform but is also mobilized to promote more stringent regulation (cf. Yeager 1990; Rose- Ackerman 1992; Vogel 1996 with Stryker 1989).
Sociologists of law have shown
how regulatory enforcement and cycles of regulation and deregulation evolve over time in response both to structural constraints of a capitalist economy and to active struggles over regulation by classes and class segments . . . many aspects of U.S. regulatory processes make it likely that laws passed against powerful economic actors will be limited in impact or will have unintended effects that exacerbate the problems that initially caused the regulation. (Stryker 2000a:1102)
For example, Yeager (1990) suggests that because the capitalist state depends on taxes from private capital accumulation, it tends to resolve conflict over negative externalities of production, such as pollution, conservatively to protect economic growth. Melnick (1983) shows how the highly structured, narrow, reactive, and adversarial legal processes through which U.S. pollution control takes place have led courts to simultaneously extend the scope of Environmental Protection Agency (EPA) programs while reducing EPA resources to achieve those goals. Yeager (1990) demonstrates that EPA sanctioning decisions, though rational given economic, political, and legal constraints on the agency, reproduce private sector inequality by favoring large corporations that have financial and technical resources.
Skewed financial and technical resources are but one reason that advocates of tough enforcement of laws regulating business are likely to lose out to resource-rich segments of the business community. Another reason emphasized by both Yeager (1990) and Edelman (1992) is the tendency of courts and regulatory agencies policing powerful economic actors to emphasize procedures over substance—a tendency that Edelman (1992) argues is prevalent especially when statutory law is ambiguous. Enforcement processes themselves may increase rather than decrease legal ambiguity (Kelly 2003). Meanwhile, as understandings about costs, benefits, and appropriate trade-offs are negotiated in regulatory arenas, shared cognitive and normative orientations often develop between regulators and regulated parties, leading to ongoing regulatory cultures that sometimes, but not always, amount to the “capture” of government regulators by the interests they are supposed to regulate (Meidinger 1987; Yeager 1990; Ayres and Braithwaite 1992; but see Sabatier 1975; Pedriana and Stryker 1997, 2004).
Part of a larger community of new institutionalist scholars of law and organizations (e.g., Sutton et al. 1994; Dobbin and Sutton 1998; Kelly 2003), Edelman (1992) and her colleagues (Edelman, Uggen, and Erlanger 1999) developed a “managerialist” perspective on civil rights and employment law enforcement. In this perspective, ambiguous statutes, such as Title VII of the Civil Rights Act of 1964, which failed to define discrimination, are interpreted in the first instance by managerial elites who must decide what the law means as they take steps to comply. Managers and human resource professionals engage in a normative process of “organizational mediation” of law in ways consistent with what they already regard as good business practice (Edelman 1992:1531). They absorb the new antidiscrimination requirements mandated by Title VII (and Executive Order 11246, mandating affirmative action for government contractors) into a managerial logic that already assumes that a “legalized” workplace, emphasizing formalized rules and due process grievance procedures, enhances smooth business operation and productivity (Edelman 1992; Sutton et al. 1994). In accord with this logic, managers create formal structures, including affirmative action offices and policies, providing “visible symbols of compliance” both to government regulators and to employees (Edelman 1992:1531).
Presuming that these symbols rarely convert to substantive impact, Edelman et al. (1999) suggest further that as symbolic compliance strategies diffuse broadly, courts will adopt ideas of compliance institutionalized in the economy without inquiring deeply into whether or not these compliance strategies are effective. Formal law itself will become an outcome of, or endogenous to, economic practice in ways that undercut tough enforcement and lessen the law’s impact. Because Title VII was enacted in large part to increase the economic equality of African Americans and whites (Pedriana and Stryker 1997), any lessened impact of it or other antidiscrimination legislation due to judges’ formal-legal validation of managers’ constructions of compliance will leave racial and other inequalities intact. The next section further examines law and inequality.
Law and Inequality
Liberal legal philosophy holds that Western legal systems are neutral, impartial as between the parties and autonomous from the rest of society, such that law is indifferent to economic, political, and social inequalities among litigants. “On the books,” all have formal equality before judges, courts, and the law (Lempert and Sanders 1986; Friedman 1995, 2005; Trevino 1996). But sociologists of law have shown that economic and social inequalities often produce legal inequalities (Galanter 1974:81); Pedriana and Stryker 2004; Edelman and Stryker 2005). Because dominant classes and social groups have interests in perpetuating their dominance, and because wealth, status, and economic and social power provide myriad resource advantages for influencing legislation, many legal systems purposely enact economic and social stratification systems into law. Examples include historical restrictions on voting based on property and gender prior to the onset of adult universal suffrage in Western Europe and the United States, laws perpetuating second-class citizenship for African Americans in the post-Reconstruction American South, the racial and property laws of South Africa under Apartheid, and laws that continue to perpetuate women’s economic and social subordination in North Africa and South Asia (Frederickson 1981; McIntyre 1994; Agarwal 1995; Charrad 2001).
Even legal systems that are formally egalitarian on the books often operate in inegalitarian ways in practice, perpetuating social inequality. For example, much research is devoted to detailing class, race, and gender biases of the American criminal justice system (Liska and Tausig 1979; Frohman 1997; Sampson and Lauritsen 1997; Baldus et al. 1998; Cole 1999; Feld 1999). Most sociologists of law agree that even where democracy, the rule of law, and formal equal access to the legal system exist, law tends to reproduce economic and social inequalities, and there are limits to how, and how much, legal rules can be mobilized as positive resources for economically and socially subordinate groups (Lempert and Sanders 1986; Trevino 1996; Stryker 2003). Previously discussed environmental law research by Yeager (1990) offers an important case in point. Similarly, Stryker (1989) shows how internal conflict within the National Labor Relations Board (NLRB) coupled with political backlash from a unified capitalist class led Congress to dismantle the NLRB’s economic unit, reducing the agency’s enforcement capacity on behalf of American labor. Galanter’s (1974) seminal essay “Why the Haves Come Out Ahead” points to some key reasons why inequality reduction through litigation is limited.
Galanter (1974) distinguished between “one shot players who have only occasional recourse to the courts . . . and repeat players who are engaged in many similar litigations over time” (p. 97). Accused criminals and spouses who file for divorce ordinarily are one-shot players; prosecutors, insurance companies, and major corporations ordinarily are repeat players. Galanter (1974) suggests that the two kinds of players usually have different goals in going to court and find it strategic to “play the litigation game” differently. A one-shot player is concerned with the outcome of her or his particular case—parents fighting over child custody care only about their child’s placement, not the general rules in child custody cases. Repeat players, such as large corporations engaged in tort litigation, pick and choose strategically among cases, allocating more resources where more is at stake in legal precedent and financial interest and choosing to settle cases likely to produce legal rulings unfavorable to them. In civil cases, a one-shot player may gain certain monetary compensation by settling. In criminal cases, he or she may settle to avoid maximum penalties such as death or lifetime incarceration.
Additional resources for repeat players include prior familiarity with the particular legal actors and processes adjudicating their cases. Repeat players also find it rational to invest in developing expertise, including ready access to specialist attorneys and other experts. Thus, when any given litigation begins, repeat players already know a great deal about the relevant legal precedents, increasing their capacity to pursue strategically cases likely to produce maximally favorable legal rules. The upshot is that, other things equal, being a repeat player gives the actor mobilizing the courts more litigation-relevant resources. The body of legal precedents produced by litigation between one-shot and repeat players is likely to be skewed systematically in favor of the repeat players (Galanter 1974).
Because lawyers are a type of repeat player (Galanter 1974), access to lawyers gives litigating parties an advantage. Since big companies who are repeat players have enduring relationships with in-house counsel and may routinely retain the same corporate law firms specializing in litigation, this amplifies their advantage. When a one-shot player gains access to a specialized lawyer, this may help balance the scales. But since the highest-prestige, highest-paying jobs in law involve representing high-status, wealthy, and powerful clients (Heinz and Laumann 1983), many skilled lawyers choose to represent “haves.” Because retaining lawyers ordinarily is expensive, have-nots may find themselves without lawyers or with lesser-quality legal counsel, though reforms that increase, rather than continue to decrease, availability of legal services to the poor would help the disadvantaged (Galanter 1974; Lempert and Sanders 1986). Increasing the pro bono work done by major law firms also would help. Overloaded criminal and civil court dockets may work in the opposite direction, with financially well-off civil defendants able to use delay to their advantage, and harried public defenders in the criminal justice system lacking time to familiarize themselves with pertinent details of their clients’ cases (Galanter 1974).
In American culture, lawyers who work on a contingency basis, receiving as payment a portion of the monetary compensation awarded to plaintiffs in civil cases on the condition that plaintiffs win the case, often are denigrated as “ambulance chasers” especially if they are personal injury lawyers. But contingency fees also increase access of the disadvantaged to attorneys and courts, assuming that prospective counsel deems disadvantaged clients to have strong cases given extant legal precedents. Similarly, public interest law firms “playing for rules” can provide those who ordinarily would be one-shot players with some of the advantages of repeat players (Galanter 1974; Chesler, Sanders, and Kalmuss 1988). In the 1960s, public interest law firms and lawyers devoted themselves almost exclusively to liberal causes. By the mid-1970s, legal organizations devoted to conservative causes entered the scene. Since then, both types have multiplied, sustaining debate around the concept of public interest legal practice (Southworth 2005).
As a testimony to Galanter’s influence, in 1999, the Law & Society Review published a commemorative issue on his 1974 essay, documenting the continued relevance of his ideas (Grossman, Macauley, and Kritzer 1999). But as Lempert (1999) noted, Galanter’s (1974) concern was with a particular type of have-not defined by action in legal institutions. Many sociologists focus instead on the divide between those who are economically, politically, and socially disadvantaged versus those who are not (Lempert 1999; Stryker 2003; Pedriana and Stryker 2004). The two types of haves and have-nots may coincide empirically. But distinguishing them analytically allows us to ask about the impact of reforms that provide to the poor, homeless, minority religious, ethnic and racial groups, women, and workers some of the advantages typical for repeat players (Harris 1999; Stryker 2003; Pedriana and Stryker 2004).
Some scholars are very pessimistic about mobilizing the legal system to mitigate class, race, gender, and other inequalities, but others are more optimistic (cf. Rosenberg 1991 with Chesler et al. 1988). Research by Edelman and colleagues (Edelman 1992; Edelman et al. 1999), reviewed in the previous section, is consistent with Galanter’s (1974) observation that equality-producing laws on the books tend not to decrease inequality in practice. But reviews of econometric studies that try to estimate directly the impact of civil rights and antidiscrimination law on workplace inequalities find positive effects of such laws on the economic status of African Americans and white women relative to white males in some periods and under some conditions (Donahue and Heckman 1991; Reskin 1998; Stryker 2001b; Harper and Reskin 2005). Donahue and Heckman’s (1991) exemplary evaluation and critique of extant empirical evidence on the impact of U.S. equal employment law seeks to isolate legal effects, taking into account diverse other factors shaping black-white employment outcomes. They conclude that in conjunction with federal antidiscrimination efforts in voting rights and education, federal equal employment law improved the economic status of African Americans between 1965 and 1975.
Early studies of affirmative action programs suggested that inequality reduction was greatest when companies monitored and rewarded managers for affirmative action performance, just as they did for performance on other business goals such as profitability (see Stryker 2001b). Harper and Reskin’s (2005) recent review article emphasized that
the intensity of employers’ AA [affirmative action] efforts has varied with the politics of AA . . . and the impact of AA in employment among federal contractors depends almost entirely on the OFCCP’s [Office of Federal Contract Compliance Program] enforcement. (Pp. 367–68)
It is easy to confound the specific impact of affirmative action with the impact of antidiscrimination law more generally and “with increasing human capital among minorities and women” (Harper and Reskin 2005:368). But, as in other legal arenas, it is clear that law’s distributional impact on society is shaped profoundly by the politics of court and agency enforcement (Stryker 2000a).
Starting in the mid-1970s, adjudicative rules interpreting American antidiscrimination law began to lose their teeth (Stryker 2001b; Harper and Reskin 2005). Providing historical periodization of Title VII’s administrative and judicial enforcement, Pedriana and Stryker (2004) investigate how early interpretations of Title VII may have helped produce the inequality reduction documented by Donahue and Heckman (1991). When it came into being, Title VII was considered a weak law with a weak enforcement agency, the Equal Employment Opportunity Commission (EEOC). From 1965 to 1971, civil rights advocacy organizations in interaction with the EEOC turned weakness into strength. They accomplished this in large part by winning an uphill litigation battle culminating in the Supreme Court’s 1971 endorsement of the disparate impact method of proving employment discrimination. This method is based on showing that business practices have a disproportionate negative impact on members of minority groups rather than on showing that employers acted with discriminatory motive or intent. Empirical research has shown that interpretations of legislative law focusing on effects rather than intent tend to maximize the positive impact of legislative laws designed to benefit the disadvantaged (Lempert and Sanders 1986; Chesler et al. 1988; Pedriana and Stryker 2004).
Pedriana and Stryker (2004) highlight how state legal capacity to promote equality reduction is a moving target, expanding and contracting over time. Aggressive and effective implementation of legislative law designed to benefit the disadvantaged is most likely to happen when there is sustained social movement pressure from below on government law enforcers. Movement pressure enhances the likelihood that enforcement agencies and courts will give such legislation an effects-based rather than intent-based interpretation. This in turn maximizes law’s capacity for inequality reduction (Pedriana and Stryker 2004). Sabatier (1975) shows that regulatory agencies that lack sustained social constituencies to push for tough enforcement may create them proactively, thus increasing social communication, technical capacity, and monitoring.
Juxtaposing studies by Sabatier (1975), Pedriana and Stryker (2004), and Chesler et al. (1988) with those of Edelman (1992), Edelman et al. (1999), Stryker (1989), and Burstein (1991) highlights the import of strategies providing the economically and socially disadvantaged with resources normally available to repeat players. Edelman (1992) emphasizes that making individual discrimination victims responsible for bringing enforcement action is a recipe for weakness. However, when advocacy organizations such as the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund took on civil rights and employment litigation at their own expense, providing specialized legal and technical expertise to many clients and coordinating litigation to play for favorable legal rules in key precedent-shaping cases, they increased the egalitarian impact of laws designed to benefit the disadvantaged (Chesler et al. 1988; Pedriana and Stryker 2004).
Equal employment laws provide ways for individual plaintiffs to overcome financial and expertise disadvantages by pooling resources for litigation. For example, the federal government can enter a lawsuit as a party on behalf of alleged individual victims. Class actions are a form of collective action involving the consolidation of many similar individual claims into a single lawsuit played for large stakes in terms of monetary awards and legal precedent (Galanter 1974; Burstein 1991; Stryker 2001b). Examining the impact of legal mobilization on the final outcomes of Title VII and other equal employment litigation cases from 1963 (when the Equal Pay Act, mandating that men and women be paid equally for the same work, was adopted) until 1985, Burstein (1991) found a statistically significant and substantial positive effect on plaintiff-employees’ chances of winning a discrimination lawsuit when government was a party in the case. He also found class actions to be significantly and positively associated with plaintiff victory. Class actions were the most common form of collective action, with government as a party a distant second, and federal and nonfederal organizations writing amicus briefs an even more distant third. Of course, not all case wins create long-term equality producing legal precedents. Rogers (1990) and Albiston (1999:860) point to the “paradox of losing by winning.”
In sum, capitalist democracies, committed to formal equality, generally provide unequal effective access to law, influence over law, and treatment by law between economic and social haves and have-nots. Formal equality usually exacerbates rather than mitigates substantive economic and social inequality. Conditions maximizing law’s equality-producing impact on society are legislative law that is substantively skewed to provide benefits to the disadvantaged coupled with effects-based rather than intent-based legal interpretation and enforcement and also with government enforcement and class actions. The latter, whether brought by government or private plaintiffs, are collective avenues of legal mobilization for collective ends. Sustained social movement pressure from below facilitates effects-based interpretation of legislative law designed to benefit the disadvantaged. Considering law and social movements connects the topics of law and inequality and law and social change.
Law and Social Change
Though sociologists of law agree that legal doctrine and institutions are not autonomous from society, Shapiro and Stone Sweet (2002) provide an especially lucid social science discussion of how precedent functions in “law in action” to create doctrinal path dependencies contributing to evolutionary change in “law on the books.” Pedriana and Stryker (1997, 2004) also address the issues of path dependency and policy feedback in legal doctrine and institutions.
Pedriana and Stryker (1997) show how societal and government actors mobilized legal language and the central value of equality already embodied in U.S. antidiscrimination law to redefine the legal concept of equal employment opportunity. The redefined equal opportunity concept included remedial affirmative action aimed at producing equality results. Based on their analyses of equal opportunity symbolic framing, Pedriana and Stryker (1997) suggest that cultural resource construction is a key mechanism through which legal feedbacks more generally occur. As affirmative action policies diffused through American business, these and other legislative law-inspired innovations transformed the American workplace (Edelman 1992; Sutton et al. 1994; Dobbin and Sutton 1998; Edelman et al. 1999; Stryker 2001b).
Recently, Edelman and Stryker (2005) proposed an explicit “political-institutional” theory of the mutually endogenous character of change in law and the economy. Grounded in a broad review of extant scholarly ideas and findings, they suggested that both overt legal and political resource mobilization and countermobilization by economic actors and more covert diffusion and modification of cultural meanings and norms across the boundaries of legal and economic-organizational fields create a reciprocal shaping process. In chicken and egg fashion, legal change creates social change creates legal change, and there is a mutually constitutive relationship between law and society.
For example, Dobbin and Dowd (2000) show how a U.S. Supreme Court ruling that unexpectedly upheld key portions of the Interstate Commerce and Sherman Acts set off a politics of mobilization and countermobilization around alternative principles of business competition. Because the Court made collusion among competitors illegal without mandating an alternative, the Court undermined cartels without providing a business replacement. In the competition over alternatives, the greater structural resources of finance capitalists allowed them to prevail, so finance capitalists had a subsequent disproportionate impact on later American business development. Casting law as independent variable to society’s role as dependent variable, Dobbin and Dowd (2000) usefully but artificially start their time clock with a particular Supreme Court decision. But political resource mobilization and countermobilization by both economic actors and political figures within extant political and legal institutions also created the Interstate Commerce and Sherman Acts, without which the Court decision discussed by Dobbin and Dowd (2000) could not have occurred. Fligstein and Stone Sweet (2002) explicitly posit and examine empirically the joint construction of European Union (EU) law and EU market integration. Using a combination of quantitative research and qualitative, historical analyses, they find that “contests between the European Court of Justice and national legal regimes affected trade patterns, which in turn spurred more litigation. More litigation both further expanded cross-border trade and promoted EC-level legislation and lobbying, which then increased trade still further” (Edelman and Stryker 2005:539).
With respect to the mutually endogenous relationship between legal change and more general cultural change, Albiston (2005) analyzed interview data from American employees who negotiated workplace leaves pursuant to the 1993 Family and Medical Leave Act. She found that “although the law constructs leave taking as legitimate, implicit [institutionalized] norms about work, gender and disability may construct very different interpretations of the same behavior” (p. 13). Thus, “competing systems of meaning shape workplace rights mobilization . . . and negotiations over FMLA rights can both reinforce and transform deeply entrenched understandings of work, gender and disability” (p. 13). Similarly, Holtzman (2003) found a mutually endogenous relationship between more general cultural concepts of good parenting and the legal concepts of good parenting pervading child custody litigation between biological and nonbiological parents. Stryker (2003, 2006) reviews substantial literature on how law shaped the “exceptionalism” of the American labor movement in comparative perspective. She shows how change in U.S. legal doctrine and institutions and change in ideologies, behavior, and institutional forms of the U.S. labor movement were mutually endogenous through political-institutional processes involving cognitive, normative, and instrumental social mechanisms.
Clearly, much of the research described in previous sections of this chapter pertains to law and social change as well as to the topics under which it was described. Studies of regulatory origins likewise are studies of legal change. Many studies of law enforcement, including especially those focusing on dynamics, are at least implicitly—and sometimes explicitly—about mutually endogenous legal and social change. Studies examining law’s distributional and redistributional effects on economy, polity, and society likewise speak to issues of law and social change, as do many studies of legal consciousness and mobilization. As highlighted in the previous section, social movements combining legal mobilization and broader political mobilization are a key mediating factor among law on the books, law in action, and social change. Not only are social movements important for understanding the mobilization and impact of law, law also is important for understanding the nature and course of social movements (McCann 1998; Pedriana 2006).
Asking “how and to what degree can [social movements] work through . . . legal traditions to advance their cause,” McCann (1998:82) notes that “movements from the start are embedded within a (more or less) legally constituted environment rather than outside the law.” Broad political movements of marginalized groups can be promoted by highlighting legal rights, as activists mobilize legal norms to name, claim, blame, and recruit new activists (McCann 1998). Thus, law is a central part of the opportunity structure for social movements (Pedriana 2006). High-profile court cases offer excellent opportunities for media publicity, popular mobilization, and broader cultural framing to accompany litigation. Thus, as McCann (1998) notes, movements can produce desired social changes even when they do not win lawsuits. Conversely, when movement opponents mobilize law, this may undermine the efficacy of the movement (see also Forbath 1991; McCammon and Kane 1997).
In sum, and consistent with research reviewed in the section on law and inequality, exactly how much and in what ways law matters for social movements and for legal and social change depends on “a variety of extralegal factors” as well as on formal-legal action and institutions (McCann 1998:85). Litigation is most effective in producing social change when it is combined with broader political activities (Sabatier 1975; McCann 1998; Pedriana and Stryker 2004). Kostiner (2003) points out that social change has multiple definitions. These include specific, measurable results, the creation of mass movements, and the transformation of thoughts. Kostiner (2003) reframes debates on law and progressive social change around the empirical question of how activists conceive of this relationship. She finds three general operating schemas: law as a way to acquire concrete resources, law as empowerment, and a vision of social change as transformation of thought—in which law plays a role, but one that is marginal.
Especially with its focus on law, legitimacy, politics, culture, the economy, and social change, contemporary sociology of law circles back to the classical sociological theorists, building on their insights and correcting their mistakes. At the dawn of the twenty-first century, American sociologists of law also are becoming increasingly drawn to global and comparative perspectives and topics on the interrelationships among diverse types of legal and social change. Drawing on world polity perspectives, legal sociologists have focused on changing human rights law and its impact (Boyle 2002; Dezalay and Garth 2002). Drawing on political and institutional perspectives, they have compared the evolution of race laws in France and Britain (Bleich 2003), examined how French feminist activists and legal actors responded to American sexual harassment law (Saguy 20003), and explored variation in evolution of family law and gender relations in North Africa (Charrad 2001). Research on “cause lawyers” likewise has gone global (Sarat and Scheingold 2001). Other research on the changing legal profession mobilizes Bourdieu’s perspective on power struggles among actors drawing on diverse types of social and cultural capital to illuminate the construction of international business arbitration as a legal field (Dezalay and Garth 1996). Still other research shows the conjoint growth and asymmetric power relations in global political fields between actors and institutions oriented to economic liberalism and those oriented to human rights (Dezalay and Garth 2002). Constructing the EU as a multilevel legal-institutional system likewise is a subject of growing interest, as is cross-national research on regulatory law and politics and comparative and historical research on international and national law and the economy (Stryker 2000a; Carruthers, Babb, and Halliday 2001; Fligstein and Stone Sweet 2002; Stone 2004; Stryker 2006).
The upswing in comparative and global foci among sociologists of law should continue for the foreseeable future. Similarly, studies of legal consciousness and legal mobilization, legitimacy and the rule of law, and political and institutional perspectives on interlinked legal and social ideas, actors, institutions, order, and change are likely to continue. In sum, sociology of law in the twentyfirst century remains grounded in questions of societal transformation that motivated sociological theorists of the nineteenth and early twentieth centuries. However, given the cumulative number of theoretically rich, empirical studies of law that now exist, future legal sociologists attempting grand theory of the scope of a Marx, Durkheim, or Weber will be far more informed empirically than were the classical sociological theorists of law and society.
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